Florida Criminal Law Opinions

THOMAS C. TURNER III, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D09-316. District Court of Appeal of Florida, Second District. Opinion filed August 26, 2009.Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Mark R. Wolfe and Denise M. Pomponio, Judges.

Thomas C. Turner, pro se.

FULMER, Judge.

Thomas Calvin Turner appeals the summary denial of his motion for presentence jail credit in two lower tribunal cases pursuant to Florida Rule of Criminal Procedure 3.800(a). Although Turner was granted relief in circuit court case number 06-13098, a successor judge deciding Turner’s motion for rehearing/motion for clarification erred when she failed to award credit in circuit court case number 06-3981. The impact of that decision is to render the credit ordered by the first judge in case number 06-13098 meaningless, as the sentences are being served concurrently. Accordingly, we affirm the order granting credit in case number 06-13098 but reverse and remand for the award of additional presentence credit in case number 06-3981.

In 2007, Turner appeared for sentencing in both cases. In accordance with a negotiated plea agreement, Judge Wolfe sentenced Turner to concurrent 48-month prison terms in both cases, with credit for time served. Before the actual pronouncement of sentence, Turner’s attorney asked that his client be given credit for time spent while released on GPS monitoring. The parties and judge agreed that Turner had no right to such credit, see Licata v. State, 788 So. 2d 1063, 1063-64 (Fla. 4th DCA 2001), but concluded that it could be awarded in the judge’s discretion. Judge Wolfe then pronounced the following: “Give him credit for all time served, noting the Court nor his attorney can tell him how many days that will be. That the Court has no objection to give him credit for the time that he was in County Jail as well as on the GPS monitor.”

Because the court ordered the sentences in each case number to be served concurrently, the jail credit was to be applied to the sentences in both cases. “[W]hen . . . a defendant receives pre-sentence jail-time credit on a sentence that is to run concurrently with other sentences, those sentences must also reflect the credit for time served.” Daniels v. State, 491 So. 2d 543, 545 (Fla. 1986); see also Netherley v. State, 873 So. 2d 407, 410 (Fla. 2d DCA 2004).

Because the credit was not reflected on the sentencing documents, in January 2008, Turner filed a motion to correct illegal sentence seeking credit for the time spent on GPS monitoring. Unfortunately, the caption of Turner’s motion carried only case number 06-13098, although in the body of the motion he referred to the other case (“violation of probation”). Judge Wolfe reviewed the motion and the transcripts of the sentencing hearing in both cases, as well as the sentencing documents. Because he had awarded the credit at sentencing, Judge Wolfe granted Turner’s motion to correct illegal sentence and directed the clerk of court to prepare an amended sentence reflecting Turner’s entitlement to 338 days of jail credit in case number 06-13098.

Fifteen days after Judge Wolfe entered the order granting relief, Turner filed a motion for rehearing/motion for clarification seeking correction of the jail credit in case number 06-3981 and asserting that even though he had overlooked writing both case numbers on his motion, Judge Wolfe clearly intended to grant credit in both cases. For some reason, this motion was referred to Judge Pomponio, who treated it as a motion for clarification and denied it. Judge Pomponio reasoned that Turner was not entitled to credit either legally or factually. However, it appears that Judge Pomponio incorrectly interpreted a letter from the Sheriff’s office referring to “Recision from GPS Program” as indicating the date that Turner was placed on GPS monitoring rather than the date that he was taken off monitoring and sent to jail. Based on the erroneous omission of days spent on GPS monitoring from August 11, 2006, to December 19, 2006, as well as jail time from December 19, 2006, until sentencing on June 5, 2007, the judge decided that Turner had been given all the credit he was due.

In addition to the error in calculation of the credit, we are concerned that Judge Pomponio’s order effectively rescinded jail credit that Judge Wolfe had ordered— both at the original hearing and in the order granting Turner’s motion to correct sentence. Because the sentences were running concurrently, the additional credit was required to be applied in both cases. Furthermore, our court “has repeatedly held that a trial court may not rescind jail credit previously awarded even if the initial award was improper.” Lebron v. State, 870 So. 2d 165, 165 (Fla. 2d DCA 2004); see also Wheeler v. State, 880 So. 2d 1260, 1261 (Fla. 1st DCA 2004). Contra Gallinat v. State, 941 So. 2d 1237 (Fla. 5th DCA 2006) (finding no double jeopardy violation if the trial court simply corrects an award of jail credit that is clearly incorrect based on the face of the record).

Accordingly, we affirm the order granting credit in case number 06-13098 but reverse the order denying clarification and remand for Turner’s sentences in both case numbers 06-13098 and 06-3981 to be amended to reflect Turner’s entitlement to 338 days of jail credit on all counts of both cases.

Reversed and remanded.

VILLANTI and KHOUZAM, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

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BRENTON JOHNSON, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D09-259. District Court of Appeal of Florida, Fourth District. August 26, 2009.Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Martin County, Sherwood Bauer, Jr., Judge, L.T. Case No. 03-1112 CFA.

Brenton Johnson, Indiantown, pro se.

Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.

Per Curiam.

The defendant below appeals the circuit court’s summary denial of his motion for postconviction relief. We reverse only as to the defendant’s claim that on count two, attempted robbery with a deadly weapon, a second-degree felony, his sentence to life in prison with a twenty-five year mandatory minimum is illegal.

In denying the defendant’s claim, the circuit court stated that the imposition of the life sentence on the second-degree felony was the result of the mandatory sentencing of the 10-20-Life statute, section 775.087(2)(a)3., Florida Statutes (2003), because the defendant discharged a firearm. However, this court disapproved of that reasoning Collazo v. State, 966 So. 2d 429 (Fla. 4th DCA 2007). We held, pursuant to section 775.087(2)(c), Florida Statutes (2004), because the statutory maximum applicable to a defendant charged with a second-degree felony of fifteen years is less than the mandatory minimum of twenty-five years, a court may impose only that mandatory minimum. 966 So. 2d at 431; § 775.087(2)(c), Fla. Stat. (2004) (“If the minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed.”).

Collazo applies here. We reverse and remand for re-sentencing of the defendant on count two to the mandatory minimum of twenty-five years. On all other grounds, we affirm.

Affirmed in part, reversed in part, and remanded.

FARMER, HAZOURI and GERBER, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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Kevin Gaiter, Appellant,
v.
The State of Florida, Appellee. No. 3D09-1926 District Court of Appeal of Florida, Third District. Opinion filed August 26, 2009.An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Mark King Leban, Judge, Lower Tribunal No. 91-14366.

Kevin Gaiter, in proper person.

Bill McCollum, Attorney General, for appellee.

Before COPE, LAGOA, and SALTER, JJ.

PER CURIAM.

This is an appeal of an order denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm the denial of relief on authority of Gaiter v. State, 737 So. 2d 565 (Fla. 3d DCA 1999). As the appellant has filed multiple postconviction motions, and as the current postconviction motion seeks to relitigate the exact claim which was decided adversely to this appellant in Gaiter, we affirm the order barring the appellant from filing further pro se motions in the trial court.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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Arcadio Cordero Palomino, Appellant,
v.
The State of Florida, Appellee. No. 3D09-1669. District Court of Appeal of Florida, Third District. Opinion filed August 26, 2009.An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Antonio Marin, Judge.

Lower Tribunal No. 04-37351.

Arcadio Cordero Palomino, in proper person.

Bill McCollum, Attorney General, for appellee.

Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.

SUAREZ, J.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(A), (D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.

Not final until disposition of timely filed motion for rehearing.

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Henry Goodman, Appellant,
v.
The State of Florida, Appellee. No. 3D09-1132. District Court of Appeal of Florida, Third District. Opinion filed August 26, 2009.An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Monroe County, Ruth Becker, Judge.

Lower Tribunal No. 97-120.

Henry Goodman, in proper person.

Bill McCollum, Attorney General, for appellee.

Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.

SUAREZ, J.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this Court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(A), (D).

Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts, including the 2007 plea colloquy, conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.

Not final until disposition of timely filed motion for rehearing.

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Jorge Perez, Appellant,
v.
The State of Florida, Appellee. No. 3D09-702. District Court of Appeal of Florida, Third District. Opinion filed August 26, 2009.An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Dava J. Tunis, Judge, Lower Tribunal No. 87-14748B.

Jorge Perez, in proper person.

Bill McCollum, Attorney General, for appellee.

Before COPE and SALTER, JJ., and SCHWARTZ, Senior Judge.

COPE, J.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). Defendant-appellant Perez claims a discrepancy between his sentence and the oral pronouncement by the trial court. The trial court denied the motion finding that defendant entered into a written plea agreement for the sentence imposed. Neither the trial court nor the State, however, attached a copy of the sentencing transcript or the written plea agreement.

On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla. R. App. P. 9.141 (b) (2) (A), shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141 (b) (2) (D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

We point to two special considerations. First, the State’s trial court response indicated that the defendant entered into a sealed plea agreement in this case. If the plea agreement is sealed and needs to remain sealed, then the plea agreement may be transmitted to this court under seal.

Second, the Florida Supreme Court has imposed some special rules where, as here, a defendant maintains that the written sentence deviates from the oral pronouncement. Williams v. State, 957 So. 2d 600, 604 (Fla. 2007); see Lopez v. State, 2 So. 3d 1057, 1059 (Fla. 3d DCA 2009). Neither the State’s trial court response nor the trial court’s order addresses whether or not a sentencing transcript is in the court file. If it is, then the court may attach the sentencing transcript to its order. If sealed, it may be transmitted under seal. If no transcript is in the court file, then the trial court may deny this part of the defendant’s motion without prejudice to the filing of an amended motion attaching the sentencing transcript. Williams, 957 So. 2d at 604.

For the stated reasons, we reverse the order now before us and remand for further proceedings consistent herewith.

Reversed and remanded for further proceedings.

Not final until disposition of timely filed motion for rehearing.

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RICHARD DALE HARRINGTON, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 1D08-4981. District Court of Appeal of Florida, First District. Opinion filed August 26, 2009.An appeal from the Circuit Court for Walton County, Kelvin C. Wells, Judge.

James C. Banks of Law Firm of Banks & Morris, P.A., Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Following this court’s recent decision in Montgomery v. State, 34 Fla. Law Weekly D360 (Fla. 1st DCA February 12, 2009), we hold that the trial court committed fundamental error by giving the standard jury instruction for manslaughter by act which added the additional element that the defendant “intentionally caused the death” of the victim when manslaughter by act requires only an intentional unlawful act.

REVERSED and REMANDED.

WOLF, KAHN, AND VAN NORTWICK, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

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CHRISTINE BROWN, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 1D08-4549. District Court of Appeal of Florida, First District. Opinion filed August 26, 2009.An appeal from the Circuit Court for Gadsden County, Thomas H. Bateman, III, Judge.

Michael Ufferman, of Michael Ufferman Law Firm, P.A., Tallahassee for Appellant.

Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant challenges the denial of her motion for post-conviction relief. We agree with Appellant’s claim that the trial court erroneously eliminated her right to file a motion for rehearing. Accordingly, we reverse and remand for the trial court to allow Appellant an opportunity to file a motion for rehearing.

The trial court summarily denied Appellant’s motion for post-conviction relief based on the record. The court further stated that “no motion for rehearing, reconsideration or clarification is allowed and will be considered frivolous if filed in derogation of this order and, if filed, may subject the defendant to imposition of sanctions.” This was clear error.

Florida Rule of Criminal Procedure 3.850(g) expressly gives the right to a defendant to file a motion for rehearing of any order denying a motion under the rule. In this case, the record reveals no sound reason for denying Appellant the opportunity to file a motion for rehearing. This was Appellant’s first motion for post-conviction relief, and she did not unnecessarily delay the proceedings by filing frivolous motions.

Although the circuit court may wish to process post-conviction proceedings as quickly as possible due to a high volume of such cases, the court abuses its discretion in cases like this by denying a defendant the right to file a motion for rehearing and possibly imposing sanctions for doing so. This is especially true in summary denial cases. The Committee Notes for rule 3.850 point out that “the provision for ex parte denial of a motion based on the face of the record was appropriate inasmuch as the movant was granted an opportunity for rehearing in which to point out any errors the court may have made, thus providing sufficient safeguards to ensure the consideration of the prisoner’s contentions.” A motion for rehearing normally alerts the appellate court to the defendant’s dissatisfaction with the trial court’s ruling as no appellate briefs are required in a summary denial case.

Accordingly, we reverse the order on review, and remand the cause with directions that Appellant be afforded the opportunity to file a motion for rehearing within 15 days of this court’s mandate and for further proceedings on the motion for rehearing.

REVERSED and REMANDED.

WOLF, BENTON and BROWNING, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

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The State of Florida, Appellant,
v.
Ernst Tabuteau, Appellee. No. 3D08-1164. District Court of Appeal of Florida, Third District. Opinion filed August 26, 2009.An Appeal from the Circuit Court for Miami-Dade County, John W. Thornton, Jr., Judge, Lower Tribunal No. 89-5791.

Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellant.

Jordan M. Lewin, for appellee.

Before RAMIREZ, C.J., and WELLS and CORTIÑAS, JJ.

PER CURIAM.

We reverse the trial court’s order granting the defendant’s motion to vacate his plea as the conviction in this case was not the sole ground for deportation. The documents in this case show that defendant was being deported not solely because of the conviction in this case, but also because he illegally entered the country, a fact which was admitted to by the defendant during his deportation proceedings. Thus, defendant has not shown that he is subject to removal solely because of the plea in this case. Forrest v. State, 988 So. 2d 38 (Fla. 4th DCA 2008). Accordingly, defendant was not prejudiced by the trial court’s failure to advise him of deportation consequences before accepting the plea in this case. Rosas v. State, 991 So. 2d 1003 (Fla. 4th DCA 2008); see State v. Green, 944 So. 2d 208 (Fla. 2006).

Defendant’s claim that, but for the conviction in this case, he might be entitled to an adjustment in his immigration status is too speculative to merit relief. A state court is not a proper forum to litigate whether appellant would have received an adjustment in his immigration status. This determination is within the exclusive discretion of federal officials. 8 U.S.C. § 1255 (2000). Rosas, 991 So. 2d at 1003-04.

Reversed and remanded.

Not final until disposition of timely filed motion for rehearing.

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Joseph Hearns, Appellant,
v.
The State of Florida, Appellee. No. 3D08-530. District Court of Appeal of Florida, Third District. Opinion filed August 26, 2009.An Appeal from the Circuit Court for Miami-Dade County, Mark King Leban, Judge. Lower Tribunal No. 04-26026.

Carlos J. Martinez, Public Defender, and Leslie Scalley, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.

Before SUAREZ, LAGOA, and SALTER, JJ.

SUAREZ, J.

Joseph Hearns appeals from a final judgment of conviction. We find that the record before us contains substantial and competent evidence that the requirements of Faretta¹ were met, and affirm.

Joseph Hearns was charged by Information with three counts: Count 1, attempted premeditated murder; Count II, use of a firearm while committing a felony, and; Count III, possession of a firearm by a convicted felon. At the conclusion of trial, the jury returned a verdict of guilty and Hearns was sentenced accordingly. Hearns was initially represented by the public defender and then by private court-appointed counsel; both counsel, in succession, withdrew citing conflict of interest.

Hearns was then appointed a third defense counsel. After Hearns underwent psychiatric evaluation and was deemed competent to proceed, Hearns sought to fire counsel. At the Nelson² hearing, the trial court fully interviewed both Hearns and counsel and determined that counsel was not ineffective in his representation. The record shows that Hearns continued to complain about counsel, and over the course of several hearings the court, in response, gave Hearns the choice of firing counsel, having a Faretta hearing and proceeding to represent himself, or to remain represented by counsel. Hearns acknowledged this, but told the court that he could not represent himself because he didn’t have the knowledge and because he was taking psychotropic medication. At the last of these hearings prior to trial, Hearns became argumentative and the court closed the proceedings. The court granted a defense continuance and set the trial date.

Third appointed counsel withdrew and the court appointed a fourth counsel to Hearns’ case. Once again, Hearns demanded that counsel be fired. The record shows that the trial court engaged Hearns in discussion of the matter, fully interviewed counsel, and concluded that counsel was not ineffective and that it would not appoint another lawyer for Hearns.

On the day of trial, Hearns again argued with the court and insisted on discharge of his current court-appointed defense counsel and appointment of new counsel. The trial court refused based on its previous Nelson hearing conclusions, and Hearns was then removed from the courtroom for belligerent behavior. Subsequently, Hearns opted to represent himself, and the court reiterated its prior conclusion that Hearns was competent to make that decision. On the day of trial the court allowed Hearns to proceed without counsel but asked counsel to remain as stand-by. One day into trial, Hearns admitted that he did not know what he was doing and agreed to counsel’s assistance. Trial proceeded to conclusion with Hearns represented by defense counsel.

Hearns asserts on appeal that the trial court conducted an inadequate Faretta inquiry, and that there is no competent and substantial evidence to support the trial court’s conclusion that Hearns’ waiver of counsel prior to trial was knowing and intelligent. Further, Hearns asserts that his constitutional rights were violated when, at one of the Faretta hearings, he was unrepresented by counsel. We disagree with both of Hearns’ assertions as the record conclusively refutes his claims.

First, the trial court at several pre-trial hearings correctly determined that Hearns was competent to make the decision to fire his attorney, but that both counsel he sought to fire were representing him competently. Because the court correctly found that counsel was not ineffective, Hearns’ insistence on counsel’s discharge was unfounded, and he was not entitled to new counsel. See Morrison v. State, 818 So. 2d 432, 440 (Fla. 2002) (holding that the trial court’s inquiry can only be as specific as the defendant’s complaint, and that a Nelson hearing is not necessary if the defendant expresses generalized dissatisfaction with his attorney or asserts general complaints about defense counsel’s trial strategy without making any formal allegations of incompetence); Wilson v. State, 753 So. 2d 683, 687 n.2 (Fla. 3d DCA 2000) (holding that an expression of general loss of confidence or trust, standing alone, does not equate to ineffective assistance and does not require withdrawal of counsel, neither does a defendant’s perception that counsel has inadequately conferred with the client, without more specific allegations of incompetence, amount to ineffective assistance, citing to Augsberger v. State, 655 So. 2d 1202, 1204 (Fla. 2d DCA 1995); Johnston v. State, 497 So. 2d 863 (Fla. 1986)). Certainly, if court-appointed counsel is found to be rendering effective assistance and the defendant insists that he still wants to discharge him or her, a Faretta hearing is in order, but this is not the case here because Hearns repeatedly asserted that he did not want to represent himself. We find that the record contains substantial support for the trial court’s determination that Hearns was competent to choose between keeping his counsel or discharging him and proceeding by himself. See Potts v. State, 718 So. 2d 757, 759 (Fla. 1998) (holding that because the trial court must weigh the right of self-representation against the rights to counsel and to a fair trial, the trial court’s ruling turns primarily on assessment of demeanor and credibility, and thus its decision is entitled to great weight, and will be affirmed on review if supported by competent substantial evidence).

Second, Hearns’ claim that he was unrepresented at a Faretta hearing is unsupported by the record. Before allowing a defendant to proceed at any critical stage of a criminal proceeding without representation, a trial court is required by Florida Rule of Criminal Procedure 3.111(d)(2)³ and Faretta “to inform the defendant of the disadvantages and dangers of self-representation and to warn him of the severity of the charge and the possible sentence. This, indeed, was the very nature of the discussion between Hearns and the court at the hearing complained of, as well as in several hearings throughout the pre-trial phase of Hearns’ case.⁴ The record provides competent and substantial evidence that the requirements of Faretta were met, and we affirm the final judgment and sentence.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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